BVA9509923
DOCKET NO. 93-16 315 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to an extension of a convalescent rating pursuant
to 38 C.F.R. § 4.30 from December 1, 1990, to May 19, 1991.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Kelly, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1968 to
April 1977.
A review of the file demonstrates that the veteran's
representative, in an October 1992 letter, requested that the
veteran's temporary total convalescent rating be extended
from April to May 1992. As this issue has not been developed
for appellate consideration and is not properly before the
Board of Veterans' Appeals (Board) it is referred to the
regional office (RO) for additional development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his temporary total convalescent
rating should have been extended to cover the period from
December 1, 1990, to May 19, 1991, as a result of his having
had continual difficulties arising from his May 1990 surgery.
The veteran maintains that he was totally unemployable during
this time period and that he suffered continuous pain. He
further reported that he had to use canes in the beginning of
January 1991 and wore a hard shoe for support thereafter.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the record supports the extension of a
temporary total convalescent rating from December 1, 1990, to
May 19, 1991.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The evidence of record shows prohibition of weight-
bearing and house-like confinement from December 1, 1990, to
May 19, 1991.
CONCLUSION OF LAW
The criteria for an extension of a convalescent rating from
December 1, 1990, to May 19, 1991, are met. 38 U.S.C.A. §
5107(a) (West 1991); 38 C.F.R. § 4.30 (1994)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran has submitted a well-grounded claim within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he
has submitted a claim which is plausible. We are also
satisfied that all relevant facts have been properly
developed and that no further assistance is required to
comply with the duty to assist him as mandated by 38 U.S.C.A.
§ 5107(a) (West 1991).
In accordance with 38 C.F.R. § 4.30, total disability ratings
for a period of one, two, or three months will be assigned if
treatment of a service-connected disability results in (1)
surgery necessitating at least one month of convalescence;
(2) surgery with severe postoperative residuals such as
incompletely healed surgical wounds, stumps of recent
amputations, therapeutic immobilization of one major joint or
more, application of a body cast, or the necessity for house
confinement, or the necessity for continued use of a
wheelchair or crutches (regular weight- bearing prohibited)
or; (3) immobilization by cast, without surgery, of one major
joint or more. The total rating will be followed by an
appropriate schedular evaluation. An extension of 1, 2, or 3
months beyond the initial convalescence period may be made
under 1, 2, or 3 listed above. An extension of 1 or more
months up to 6 months beyond the initial six months period
may be made under 2 or 3 listed above.
A review of the file demonstrates that the veteran underwent
a radical bunionectomy with a modified Waterman osteotomy of
the first metatarsal of the right foot in July 1989.
Subsequent to the operation, the veteran developed an
infection in his right foot and was hospitalized from August
16, 1989, to October 17, 1989. A February 7, 1990, VA
outpatient treatment record noted that while there was no
evidence of residuals of infection, the veteran remained
disabled pending a reevaluation. A March 2, 1990, outpatient
treatment record noted no finding of infection and indicated
that the veteran was able to weight bear on his foot. It was
further noted that the veteran was to be scheduled for
surgery on his left foot on May 4, 1990, which would require
three to four months of rehabilitation. An April 1990 rating
determination granted a temporary total convalescent rating
from August 16, 1989, to March 31, 1990.
In May 1990, the veteran underwent surgery for fusion of his
left first great toe. Upon discharge, the veteran was found
to be unemployable. A September 1990 outpatient treatment
record noted that the veteran had cellulitis of the left
great toe extending to the nailbed. An October 1990
outpatient treatment record indicated that the veteran was
feeling better, but that edema was still present in the
borders. No drainage was noted at that time. The examiner
found that the veteran was still permanently disabled and
that he would be unable to work until his toes fully healed,
which would take approximately six more weeks.
The veteran was again seen on December 24, 1990, at which
time his nails were noted to be well healed. The veteran did
not report any complaints of pain and was noted to be walking
well. The examiner reported that the veteran, a fisherman,
was able to work now with jobs other than fishing, which was
an unstable environment. A February 1991 outpatient
treatment record noted the veteran had severe restrictions of
the joint in his left great toe and moderate restrictions of
the joint in his right great toe.
A March 1991 VA outpatient orthopedic clinic record noted
that the veteran complained of persistent swelling and pain
in his right and left toes. The veteran reported that he was
attending college and doing well in school. He further
indicated that the pain was disconcerting. Physical
examination of the right foot revealed a well-healed hallux
scar, with no motion at the fusion site and no infections.
Examination of the left foot revealed a well-healed scar with
no metatarsal phalangeal joint motion. X-rays revealed there
to be good fusion at the metatarsal phalangeal joint,
bilaterally.
The veteran was next seen on May 20, 1991, with complaints of
severe pain in both great toes. The veteran indicated that
he had felt better until he had increased his ambulation and
began attending schooling. He further reported that he had
chronic pain on the tops of his great toes. The veteran was
noted to have excellent flexion and good fusion. He was also
noted to have 2+ edema on the right first toe and 1+ edema on
the first left toe. The examiner indicated that the veteran
was unemployable due to the pain and that he was barely able
to tolerate school. The examiner further noted that he would
attempt orthotic control and indicated that the veteran's
foot should be recast. On June 3, 1991, the veteran's feet
were recast and the examiner found that the veteran was still
unemployable. In August 1991, the veteran underwent a
dorsiflexion wedge osteotomy in the area of the first left
great toe area to alleviate inappropriate alignment.
In December 1991, a VA examiner opined that as a result of
the veteran having undergone numerous surgical procedures in
the area of the first metacarpophalangeal joint with
subsequent infections, he had been unable to work or ambulate
effectively since approximately December 1989. It was
further the examiner's opinion that the veteran had
definitely been unemployable for the period of December 1,
1990, to August 31, 1991.
At his October 1992 personal hearing, the veteran indicated
that when he went to his appointment with Dr. Coburn on
December 24, 1990, he felt that his condition was improving,
but noted that he had been off his feet all during this time.
The veteran indicated that he developed heavy swelling a few
weeks later, but could not get into see Dr. Coburn for four
months. He further testified that the pain became so
unbearable in February 1991 that he went to the emergency
room, where he was told to see Dr. Coburn. He further
reported that when he finally got to see Dr. Coburn, he
stated that the veteran had to stay off his feet and that he
possibly needed additional surgery. Transcript page 3 (T.
3). The veteran also indicated that when he started walking
again, he had a hard shoe on. The veteran further testified
that Dr. Coburn was at the VA for only 7 hours a week and
that he had little access to him. (T. 7). He also testified
that he did not work during this time period. (T. 9). He
further indicated that while he had a full-time schedule at
college in January 1991, it had to be reduced because he was
only able to attend classes in the same building. He also
noted that unusual accommodations were made in order to allow
him to attend classes. The veteran further indicated that he
wore an orthotic device during this time period. (T. 10).
He also reported that he used canes when he first attended
school. (T. 11). He further reported that after a few hours
a day in school, he would have to go back home and lay on the
couch. (T. 11).
At the time of his personal hearing, the veteran submitted a
letter from Russell O. Milham, a counselor at Bristol
Community College, which noted that the veteran had been
having severe problems with his legs and his feet, which
severely limited his mobility. Mr. Milham indicated that in
order for the veteran to have access to the college, special
accommodations for his mobility problems and his need to be
absent for medical attention had to be made. It was Mr.
Milham's opinion that the severe pain, medical follow-ups,
and surgeries under normal circumstances would have prevented
the veteran from attending colleges under normal
circumstances. Mr. Milham further indicated that special and
unusual accommodations were made to allow [redacted] to even
attend school.
In an October 1992 VA outpatient treatment record, a VA
examiner again noted that there was no possible way that the
veteran could have been employed from May 1990 to May 1992.
Overall, the evidence reflects that while the veteran
reported that his feet were getting better on December 24,
1990, the testimony of the veteran indicates that his feet
swelled within two weeks of beginning classes in January
1991. The veteran further testified that he was using canes
upon his return to school and that he used a hard shoe
thereafter. The veteran further testified that he could only
attend classes that were in the same building due to his
inability to walk. He also reported that he was forced to
return home and lay on his couch after only a few hours at
school. The letter received from Dr. Milham noted that in
order for the veteran to have access to the college, special
accommodations for his mobility problems and his need to be
absent for medical attention had to be made. Mr. Milham
indicated that the veteran would not have been able to attend
school under normal circumstances. In addition, VA examiners
on two separate occasions, indicated that the veteran was
unemployable. In December 1991, the examiner found that the
veteran had been unable to ambulate effectively since
December 1989.
In light of the hearing testimony and the clinical data, it
appears to the Board that the veteran was confined to his
home, with the exception of the special provisions that were
made to allow him to attend class several hours per week,
during this time period and that regular weight bearing was
prohibited. Consequently, the evidence supports a
convalescent rating for the period of December 1, 1990, to
March 19, 1991.
ORDER
An extension of a temporary total convalescent rating
pursuant to 38 C.F.R. § 4.30 from December 1, 1990, to May
19, 1991, is granted, subject to the laws and regulations
governing the payment of monetary benefits.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.